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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, August 26, 2008

Can a non-custodial parent bring a lawsuit under the IDEA?

The law governing the education of disabled students is sufficiently complicated that even experienced lawyers tear their hair out trying to make sense of its provisions. This is particularly true since the Individuals With Disabilities in Education Act ("IDEA") must be interpreted in light of State education law, which includes lengthy and convoluted regulations. What this means is that when the Second Circuit came upon an IDEA case that touched upon State education law, the Court referred it to the New York Court of Appeals for a ruling that clarifies certain issues so that the Second Circuit can issue a proper decision.

The case is Fuentes v. Board of Education of the City of New York, decided on August 26. The issue here is typical of many IDEA cases: a parent who is dissatisfied with the educational placement of his disabled child is suing the school in order to get the proper benefits. The problem here is that the parent-plaintiff is the child's non-custodial parent. The IDEA allows parents to sue on behalf of their children, but that law does not clearly identify who is a "parent." In other words, "parent" is a term of art under the IDEA. But the law does not speak to this situation: a non-custodial parent who wants to sue over his child's education. As the Second Circuit (Walker, Calabresi and Raggi) states:

The parties’ briefing and our own research have not uncovered controlling precedent from the New York Court of Appeals as to whether the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control education decisions.

Ultimately, this is a matter of State law. Although the IDEA is a Federal statute, education is primarily a State function and the IDEA borrows many State educational concepts. While some of the mid-level appellate courts in New York have ruled on the issue (holding that the non-custodial parent does not have the right to bring a case like this), the New York Court of Appeals has not definitively resolved this issue. The Second Circuit explains, "While we might normally accept the unanimous decisions of two departments of the Appellate Division as sufficiently determinative to allow us to decide this case, we are reluctant to take that final step in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial arrangements in New York–-a matter of paramount state concern."

The Second Circuit is therefore exercising its authority to certify the issue to the New York Court of Appeals for a ruling on this issue. The file is now sent to the New York Court of Appeals in Albany. When that court issues a ruling, the case returns to the Second Circuit which will apply the authoritative decision by the New York Court of Appeals.